Are Ransomware Attacks A HIPAA Issue, Or Just Our Fault?

With ransomware attacks hitting hospitals in growing numbers, it’s growing more urgent for healthcare organizations to have a routine and effective response to such attacks. While over the short term, providers are focused mostly on survival, eventually they’ll have to consider big-picture implications — and one of the biggest is whether a ransomware intrusion can be called a “breach” under federal law.

As readers know, providers must report any sizable breach to the HHS Office for Civil Rights. So far, though, it seems that the feds haven’t issued any guidance as to how they see this issue. However, people in the know have been talking about this, and here’s what they have to say.

David Holtzman, a former OCR official who now serves as vice president of compliance strategies at security firm CynergisTek, told Health Data Management that as long as the data was never compromised, a provider may be in the clear. If an organization can show OCR proof that no data was accessed, it may be able to avoid having the incident classed as a breach.

And some legal experts agree. Attorney David Harlow, who focuses on healthcare issues, told Forbes: “We need to remember that HIPAA is narrowly drawn and data breaches defined as the unauthorized ‘access, acquisition, use or disclosure’ of PHI. [And] in many cases, ransomware “wraps” PHI rather than breaches it.”

But as I see it, ransomware attacks should give health IT security pros pause even if they don’t have to report a breach to the federal government. After all, as Holtzman notes, the HIPAA security rule requires that providers put appropriate safeguards in place to ensure the confidentiality, the integrity and availability of ePHI. And fairly or not, any form of malware intrusion that succeeds raises questions about providers’ security policies and approaches.

What’s more, ransomware attacks may point to underlying weaknesses in the organization’s overall systems architecture. “Why is the operating system allowing this application to access this data?” asked one reader in comments on a related EMR and HIPAA post. “There should be no possible way for a database that is only read/write for specified applications to be modified by a foreign encryption application,” the reader noted. “The database should refuse the instruction, the OS should deny access, and the security system should lock the encryption application out.”

To be fair, not all intrusions are someone’s “fault.” Ransomware creators are innovating rapidly, and are arguably equipped to find new vectors of infection more quickly than security experts can track them. In fact, easy-to-deploy ransomware as a service is emerging, making it comparatively simple for less-skilled criminals to use. And they have a substantial incentive to do so. According to one report, one particularly sophisticated ransomware strain has brought $325 million in profits to groups deploying it.

Besides, downloading actual data is so five years ago. If you’re attacking a provider, extorting payment through ransomware is much easier than attempting to resell stolen healthcare data. Why go to all that trouble when you can get your cash up front?

Still, the reality is that healthcare organizations must be particularly careful when it comes to protecting patient privacy, both for ethical and regulatory reasons. Perhaps ransomware will be the jolt that pushes lagging players to step up and invest in security, as it creates a unique form of havoc that could easily put patient care at risk. I certainly hope so.